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Criminal Appeal No. 365 of 1967, decided on 8^th July 1968.

Ss. 340 & 342‑--Trial Court neither examining accused properly under S. 342 nor affording him opportunity to engage a counsel of his own choice‑--Conviction, held, rendered illegal.

In the instant case, there was an application put in by the accused wherein he had requested for time to engage a counsel as the counsel engaged by him had refused to defend him. The accused was refused an opportunity to engage a counsel and he was not afforded with full opportunity to get proper legal advice and assistance before he was called upon to cross‑examine the prosecution witnesses. The record of the case also disclosed that the accused was not asked as to whether he would like to bring forward his witnesses or has any defence to make.

Held, it is well settled that every accused has a right to be defended by a pleader of his own choice in view of the provision of section 340, Cr. P. C. As the trial Judge did not properly examine the accused under section 342, Cr. P. C. and also did not afford him opportunity to engage a counsel of his own choice that would render his conviction illegal.

Majibar Rahman and others v. The Sate P L D 1961 Dacca 96 ref.

Ch. Abdul Hafeez for Appellant.

A. K. Lakhani for Addl. A.G. for the State.

Date of hearing: 8th July 1968.

In view of the order that t am going to make in this case, it is not necessary to state the facts. Suffice it to say that the appellant was tried under sections 457, 392 read with section 397, P. P. C. by the learned Sessions Judge, Tharparkar at Mirpur Khas, who found him guilty of the said charges and ordered him to undergo three years' R. I. under section 4, 7 and seven years' R. I. under section 392 read with section 397, P. P. C. Both the sentences were ordered to run concurrently.

2. Ch. Abdul Hafeez, learned counsel for the appellant stoutly contended:‑

(a) that on 26th October 1967, the accused put in an application to the learned Sessions Judge wherein he stated that he had engaged Ch. Abdul Jabbar, to defend his case in the lower Court who had returned the brief to him on the evening on 25th of October 1957 and had refused to defend him in the Sessions Court. Therefore, it was not possible for him to engage a counsel in a short period and requested that he should be afforded an opportunity to engage another counsel to defend his case. The learned Sessions Judge declined the petition on the ground that the witnesses were from outside and it was not possible to adjourn the case. In the circumstances, learned counsel for the appellant argued that the accused had not sufficient opportunity to engage a counsel and as he has the right to be defended by a pleader of his own choice as required under section 340, Cr. C. P. and as this right has been denied to him re‑trial should be ordered; and

(b) that the Urdu record of the proceedings shows that the accused was not asked under section, 341,, Cr. P. C. if he would like to examine any defence witnesses and although a general question was put to the accused according to the English record as to whether he wanted to lead any evidence in his defence without a specific enquiry as to whether he would adduce any defence evidence was not a due compliance with the provision of section 34 , Cr. P. C. and that the accused has been prejudiced in his defence by reason of unsatisfactory examination.

3. It is well settled that every accused has a right to be defended by a pleader of his own choice in view of the provision of section 340, Cr. P. C. In the instant case, there was an application put in by the accused wherein he had requested for time to engage a counsel as the counsel engaged by him had refused to defend him. In face of the application on the record it can be said that the accused was refused an opportunity to engage a counsel and he was not afforded with full opportunity to get proper legal advice and assistance before he was called upon to cross‑examine the prosecution witnesses. The proper course open for the learned Sessions Judge was to have adjourned the can: or in the alternative the Court should have taken down the examination‑in‑chief of the witnesses in attendance and should have adjourned the case for cross‑exami nation. In the instant case either of these modes was not adopted. Therefore, obviously the accused was prejudiced in his defence.

4. The record of the case also discloses that the accused was not asked as to whether he would like to bring forward his witnesses or has any defence to make. In similar circumstances in case Majibar Rahman and others v. The State (P L D 1961 Dacca 96) Baquer, J. delivered himself as follows:‑

"The object of the examination under section 342, Cr. P. C. is to establish a sort of personal relationship between the Judge and the accused whether the accused would like to examine any defence evidence, should be not in the mind of the Judge only but should be expressed directly to the accused by the learned Judge to elicit directly the view‑point of the accused with regard to his right and desire for bringing D. Ws."

As the learned Sessions Judge did not properly examine the accused under section 342, Cr. P. C. and also did not afford him opportunity to engage a counsel of his own choice that would render his conviction illegal.

5. For the foregoing discussion I am of the considered opinion that the convictions and sentences of the appellant cannot stay. They are accordingly set aside and the case is remanded back to the trial Court for fresh trial.

6. The appellant is admitted to bail in the sum of Rs. 5,000 (five thousand) with one surety in the like amount to the satin action of the trial Court pending the decision of the case against him.

Case remanded.

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